Report No. 42

16.11. Act intended to kill, not leading to death, but death caused by subsequent act.-

A nice question of law arises where an offender, intending to kill a person, does an act which does not cause death, and then, believing the victim to be dead, he does another act which causes the death of the victim. A study of decided cases on the subject reveals some controversy as to whether, in such cases, the killer can be held guilty of murder. The majority view is that, if the two acts of the offender are parts of the same transaction, then his mistaken belief that death was caused by his first act should be disregarded. To use a metaphor, this belief should not be allowed to act as a veil dividing the previous intentional act aimed at killing, and the subsequent action aimed at concealment.

We carefully considered the question of inserting a new section to provide that, where an act done with the intention or knowledge referred to in section 299 or section 300 does not cause death, but death is caused by another act forming part of the same transaction, then the two acts taken together would constitute the offence which would have been committed if the first act alone had caused death. We have, however, decided against the insertion of such a section in view of the full consideration of this subject in recent decisions1 of High Courts.

1. Lingaraj Das, 19441LR 24 Pat 131; Mehto, 1939 ILR 18 Pat 485;

Kaliappa Gounder, 1933 ILR 57 Mad 158; AIR 1943 Mad 571; 1950 Cr LJ 605.

16.12. Section 302.- Section 302 which lays down the punishment for murder needs no change.

16.13. Euthanasi.-Question put.-

For the last few years, the question of legalising 'euthanasia' or 'mercy killing' has been engaging the attention of lawyers, moralists, physicians and laymen. Should the act of putting to death a person who is in physical agony, or to whom life has become useless because of his bodily condition, be regarded as culpable homicide when it is done with the person's consent ? We included in our Questionnaire the question, "should euthanasia (or 'mercy killing' as it is popularly called), be exempted from punishment either as homicide or as abetment of suicide ?"

16.14. Replies received.-

The majority of the replies to this question show a strong opposition to exempting euthanasia from punishment. They emphasise that if euthanasia is to be legalised, very elaborate safeguards will be required, that there is great danger of abuse, that it will be difficult, almost impossible, to distinguish between a genuine case of killing for mercy with consent and a case of murder, and that these practical aspects must outweigh humanitarian considerations. Those who favour exemption point out that there is no reason why a man in serious agony arising out of incurable disease or otherwise should be forced to protract his agony. They consider that with adequate safeguards, such as certificates from two medical officers and the consent in writing of the sufferer before witnesses, euthanasia should be permitted.

16.15. Position in other countries.-

In most English-speaking countries the causing of voluntary death in cases of painful and incurable disease is punishable even though the sufferer is willing. It is suicide if performed by the patient himself, and murder if performed by any other. Even in countries where an attempt to commit suicide is not an offence, abetting the commission of suicide is punishable. Thus, the Swiss Penal Code provide1 in Article 114 that "whoever kills a human being upon the latter's earnest and urgent request shall be confined in prison"; and in Article 115, that "whoever, from selfish motives, induces another person to commit suicide or aids him in it, shall be confined in the penitentiary for not over five years, or in prison, provided that the suicide has either been completed or attempted."

1. From the translation published in the Journal of Criminal Law and Criminology, Vol. 30, No. 1 (1939).

16.16. Legalising euthanasia not recommended at present.-

On a consideration of various aspects of the matter, and in particular the state of public opinion on the subject, we have come to the conclusion that it would not be advisable to insert a provision totally exempting euthanasia from criminal liability. The Code has taken note of it as a circumstance for reducing the offence from murder to culpable homicide not amounting to murder1. Moreover, the range of punishment provided for the latter offence2 is wide enough to allow the court to pass light sentences in appropriate case. The law is thus elastic and a total exemption from liability is hardly called at present. If later on, in consequence of a change in world opinion, there is a strong demand for legalising mercy-killing, the matter may be re-considered.

1. From the translation published in the Journal of Criminal Law and Criminology, Vol. 30, No. 1 (1939).

2. Section 300, Exception 5.

16.17. Section 303.-

Under section 303, if the murderer is "under sentence of imprisonment for life" he shall be sentenced to death. The words quoted have caused some difficulty. A person whose sentence of imprisonment for life has been remitted unconditionally by the Government has been held not to be under the sentence1, but if a person is released conditionally, he is held to be "under" it2. This may look somewhat anomalous. The primary object of making the death sentence mandatory for an offence under this section seems to be to give protection to the prison staff.

If so, replacing the words "being under" by the words "whilst undergoing" may remove the anomaly and restrict the application of the section to life convicts actually in prison. But as section 303 is very rarely applied, no change is recommended. Where there is an exceptionally hard case, it could be easily dealt with by the President or the Governor under the prerogative of mercy.

Incidentally, we note that in its Report on Capital Punishment3, the Law Commission was against making the punishment of death under section 303 discretionary.

1.Ghulam Mohd., AIR 1943 Sind 114.

2.Po Kun, AIR 1939 Rang 124; Sohan Singh, AIR 1965 Punj 156.

3.35th Report.

16.18. Section 30.-analysis.-

Section 304 lays down the punishment for culpable homicide not amounting to murder, and is in two parts. Under the first part, the punishment is imprisonment for life, or imprisonment upto ten years, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death. Under the second part, imprisonment upto ten years, or fine, or both, is the punishment, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. This scheme is thus based on a distinction between intentional homicide and unintentional homicide, with a higher punishment in the first case.

16.19. Distinction unnecessary.-

This distinction, though theoretically sound, is unnecessary in practice. The Court has always the discretion to pass a lenient sentence if the homicide was based on guilty knowledge and not on guilty intention, and there is no need to waste time in deciding whether the offence comes under the first part or the second part. We, therefore, recommend only one maximum punishment for all types of offences under this section. While life imprisonment is never given for this offence and is not necessary, we feel that imprisonment should be mandatory even in cases falling under the second part of the section.

16.20. Simplification of section recommended.- Section 304 may, accordingly, be simplified as follows.-

"304. Punishment for culpable homicide not amounting to murder.- Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

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